ORDINANCE NO. 041194

Repealing Sections 8 and 9 of Ordinance No. 040010 that mistakenly assessed an encroachment fee in the amount of $77,700.00 and estimated revenue in the amount of $77,700.00.

WHEREAS, on January 22, 2004 the City Council passed Ordinance No. 040010 that assessed an encroachment fee in the amount of $77,700.00 and estimated revenue in the amount of $77,700.00; and

WHEREAS, the assessment of the encroachment fee in the amount of $77,700.00 and the corresponding estimate of revenue was a mistake that should not have been included in the ordinance; and

WHEREAS, the City Council desires to correct the clerical error in Ordinance No. 040010 by repealing Sections 8 and 9 of Ordinance No. 040010; NOW, THEREFORE,

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

Section 1. That Sections 8 and 9 of Ordinance No. 040010 are hereby repealed.

Section 2. That permission is hereby given to Highwoods Properties, its successors and assigns, as owner and permittee to remove and replace concrete walks, brick paving, fountains, masonry and cast stone walls, decorative railings, site furniture, plumbing and site lighting within the Kansas City public right-of-way of Nichols Road and Pennsylvania Avenue, all in the recorded plat of APenn Park@, Kansas City, Jackson County, Missouri.

Section 3. That all material, design and method of the construction shall be in accordance with the plans and specifications approved by the City Engineer and identified as Public Works File No. 2003-439.

Section 4. Permittee, by accepting the benefits conferred by this ordinance agrees to defend, indemnify, and hold harmless the City from any and all claims, suits, losses or damage as a result of this permission.

Section 5. That in order to hold the City harmless from claims for bodily injury and for property damage arising out of the construction and duration of the encroachment, the permittee shall keep in force a policy of liability insurance in an amount not less than that required by Chapter 64 of the Code of Ordinances. In the event that ordinances are modified during the constructions and/or duration of the encroachments, the insurance provided by the permittee shall be revised to conform to the modified requirements. If, at any time, the insurance is cancelled or allowed to expire the permittee shall remove said encroachments from the right-of-way. If a reasonable time lapses upon such cancellation or expiration, and the permittee has not removed the encroachments herein permitted, the City may remove them without notice. Upon removal, title to all materials, which have been removed, shall vest in City so that they can be disposed of for scrap with the proceeds going to Kansas City as compensation for the cost of removal.

Section 6. That, at its own expense, permittee will cause the encroachments provided for herein to be maintained in good repair for so long as they remain in the right-of-way, and will cause them to be removed when they are no longer in use. If the permittee fails to either maintain or repair the encroachments as herein provided, then the City may remove them without notice. Upon removal, title to all materials, which have been removed, shall vest in City so that they can be disposed of for scrap with the proceeds going to Kansas City as compensation for the cost of removal.

Section 7. That the permission given shall be construed as a permit, and not as a grant, and may be revoked by the council at its discretion. Upon revocation the permittee or the owner of the property at the time of the revocation shall cause the removal of the encroachment and the restoration of the area without expense to the City.

Section 8. That the permission herein granted requires that a permit be obtained from the Director of Public Works for the construction and maintenance of concrete walks, brick paving, fountains, masonry and cast stone walls, decorative railings, site furniture, plumbing and site lighting, permitted by this ordinance.

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Approved as to form and legality:

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Mark P. Jones, P.E.

Assistant City Attorney